Where did you say you were from?

Some are more equal than others

August 2, 2010

Zöe has a must-read post called simply Equality? over at her blog, in which she takes a look at the changes the Equality Act 2010 (direct link to PDF) will bring and concludes that:

It means that there is one “protected” class where protection is explicitly removed, not granted. It means that a gender recognition certificate is not worth the paper it’s printed on. Rather than being a recognition that they are of the target gender, it’s a nullity, as the law states that they’re not, not really. […]

[…] any legally sex-segregated area can now legally exclude anyone who’s trans from either being employed there, or as customers.

Regardless of whether they have a GRC or not.

All the proprietors have to prove is that it’s genuinely possible some of their clientele might be lost should they allow a “transsexual person” to be present on the premises.

Note also that the converse does not apply: it is illegal sex-discrimination to require counsellors for trans people to be trans themselves.

[…]

[The Equality Act 2010] effectively repeals large sections of the Gender Recognition Act 2004 – to wit, in all areas of provision of legally sex-segregated services. Things like toilets for example.

Note that it does not apply to transgendered people who are not transsexual persons. Only those who have started or completed the process of transition. Crossdressers good, transsexuals bad.

So apparently, even though I have a full GRC, and all my other documentation shows my gender correctly, I will no longer legally be a woman when this Act comes into force in October; I’ll be a “transsexual person” and that means I can forget it if I think I can count on UK law for any protection of my civil and human rights.

I’m already seeing a groundswell of outrage and anger amongst some of my trans sisters online; I think it’s entirely understandable, even justifiable. Because, when you get right down to it, cis society is transphobic, by default and to its core; there is precious little respite for trans people and, like most humans, repeatedly backing us into a corner isn’t going to put us in the best of humours.

But anti-trans prejudice is so deeply embedded in cis society that all the legislation in the world is never going to change anything for the better, least of all the attitudes of cis people. There’s no logic, no acceptance and certainly no justice. There never really was – all this legislation will do is formalise a state of affairs which already exists.

Cis people may, rightly, feel aggrieved about the low proportion of reported rapes that end in a successful prosecution – but has anyone ever seen statistics for reported rapes of trans people? Has anyone ever heard of even one trans person who’s seen a successful prosecution? And there may well be too few rape crisis centres available to cis women – but how many of them will even let a trans woman through the door, let alone offer help and support?

The fact is that the law – like many other aspects of society which the majority of cis people take for granted – is simply not accessible to us. Trans people are routinely dehumanised and demonised, excluded and harassed, attacked and even murdered with impunity by cis people from across the entire class spectrum – and, be honest, would you trust a system in which nearly everyone you meet treats you as less than human?

As the old joke goes: it doesn’t matter which way you vote, the government still gets in. And as far as I’m concerned, with this legislation, the government looks set to do a far better job of morally mandating people like me out of existence than Janice Raymond could ever dream of.

I’ve written to my MP about this, he was a very vocal supporter of the GRA and will (hopefully) be as horrified as I am to hear of this turn of events. Unfortunately he’s now in opposition, but we’ll see.

I would REALLY like to hear a competent legal opinion on this one.
The act does distinguish between men, women and transexual persons for the perfectly good reason that its about trans protection in specific areas beyond that accorded by gender, e.g. a woman who’s gone through gender reassignment has rights as a woman AND as a transexual person.
And to go from the given example of exclusion of trans people from group rape counselling being possibly legitimate to a totally general thing about sex segregated spaces would not seem to hold up at first sight. Just giving that example is grounds for prosecution of any body that discriminated in provision of individual rape counselling.
The act talks throughout about discrimination being legal if proportionate and in pursuit of legitimate aims, e.g. therapy for rape victims. ‘Losing customers’ definitely does not come within this category. In the same way it may be legitimate to exclude male counsellors from dealing with rape victims, but not from a public bar because some customers are rad fems who might leave because they felt uncomfortable
Maybe I’m being far too optimistic about this but, to repeat, I’d want a definite legal opinion before protesting.

The act does distinguish between men, women and transexual persons for the perfectly good reason that its about trans protection in specific areas beyond that accorded by gender, e.g. a woman who’s gone through gender reassignment has rights as a woman AND as a transexual person.

That would be a good reason if transsexual women were indeed treated as women as well as transsexuals, but the example given makes it clear that these are seen as exclusive categories. The trans woman who is excluded from a rape crisis centre on the grounds that she is trans will be unable to demand entry on the grounds that she is a woman.

Each category has it’s particular exceptions to general non-discrimination. This doesn’t mean, because there may be different small exceptions to a general rule of non-discrimination that apply, that we’re talking exclusive identities.
If you’re a woman, a trans woman, a woman of colour and a woman of a particular religion, then there may be different circumstances where there may be such exceptions ; it doesn’t follow that thereby ,say, an islamic woman isn’t a real woman because the general synod of the church of england might be allowed to bar islamic women from some meeting, but not women in general.
Again, it’s hard to see on what grounds a trans woman could be so excluded from a rape crisis centre in law: the example pointedly refers to group therapy and places, simply by using the word ‘judgement’, a burden on the person excluding to exercise such in accord with normal legal principles of reasonableness.
It may be that there are areas of fudge, which may simply be due to the fact that the trans category does cover a range between non hormone taking and post op and one can’t put a ‘passing’ category into law to dealing with issues arising around rape counselling. This may not be an ideal act in many ways, but it’s not necessarily that sinister. Anyone who remembers early race laws in the UK might recall the failure of attempts to expand the scope of exceptions past the clear intent of the law – in short, they failed.

Okay, that’s useful. I suppose what worries me is that a phrase like the following – “A counsellor working with victims of rape might have to be a woman and not a transsexual person” – seems to place the category of women in distinction to that of transsexuals (though I admit it doesn’t do so absolutely), in a way that your phrasing about barring Islamic women but not women in general does not. But then, I’m not a lawyer!

Well, I’m certainly not either, but the intro to the act states that by transexual person is meant one with the protected characteristic of gender reassignment, (‘person’ is neutral and used in all categories ).
I’d agree that the exceptions pose difficulties, but I’d note words like ‘judgment’ and ‘might’, which might simply be a way of allowing non-passing trans women to be excluded on appearance grounds, by making it subject to a potential court case if the judgment is arbitrarily done to exclude trans women en bloc.
I’m not dogmatic about any of this and a trained opinion would be great. But in the meantime I must say that believing govt lawyers to have sabotaged the law’s stated anti-discrimination aims so as to cause an endless succession of court cases… on those grounds alone I’m sceptical of a doomsday scenario.

Equality Act 2010 (c. 15)
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements
(3) The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
(a) in the case of gender reassignment, as references to a requirement **not** to be a transsexual person (and section 7(3) is accordingly to be ignored);
—-
It’s inverted for Transsexuals and married people.
The protected characteristics for employment are the requirements *not* to be married or *not* to be transsexual.

One cannot therefore require an employee to be married; nor that they be transsexual. One can require that they be unmarried, or not transsexual.

In all cases, there must be a genuine reason for this apart from the employer’s prejudice. The prejudice of prospective clients, and thus their unwillingness to avail themselves of the sex-segregated service, is considered a genuine reason.

It’s also made clear that “transsexual” also includes anyone at all who has lived in the opposite role to their birth gender for two years, even if they’ve never sought any form of medical consultation. Such things as GRCs are a nullity.